Section 5 of the
Federal Trade Commission Act (15 U.S.C. 45) is amended by adding at the end the
following:

(o)

Advertising of
Dietary Supplements and Dietary Ingredients

(1)

Definitions

In
this subsection—

(A)

the term
dietary supplement has the meaning given to that term in section
201(ff) (21 U.S.C. 321(ff)) of the Federal Food, Drug, and Cosmetic Act;
and

(B)

the term
dietary ingredient means an ingredient listed in subparagraph (A)
through (F) of section 201(ff)(1) (21 U.S.C. 321(ff)(1)) of the Federal Food,
Drug, and Cosmetic Act that is included in, or that is intended to be included
in, a dietary supplement.

(2)

Exemptions from
regulation as advertising

No
content of any publication shall be considered advertising regulable under this
Act unless the content is intended by the seller of a product to promote the
sale of that product and the content includes (A) the name of the product
offered for sale; (B) an express offer to sell the named product; and (C) a
purchase price for the product. No content excerpted in whole or part from a
peer-reviewed scientific publication shall be considered advertising regulable
under this Act.

(3)

No implied
claims

In any investigation commenced by the Commission and in
any adjudicative proceeding in which the Commission is a party, the Commission
shall not attribute to an advertiser accused of false advertisement any
advertising statement not actually made by that advertiser.

(4)

Notice,
opportunity to cure, and burden of proof for investigation

Before the Commission authorizes an
investigation of false advertisement by an advertiser of a dietary supplement
or a dietary ingredient, the Commission shall send the advertiser a written
Notice of Suspected Violation and Opportunity to Cure informing
the advertiser of—

(A)

the precise
advertising statement that the Commission suspects may be false or
misleading;

(B)

the scientific
basis for the Commission’s view that any statement of health benefit may be
false or misleading; and

(C)

a date certain,
not less than 30 days after the date of the advertiser’s receipt of the notice,
by which the advertiser may voluntarily discontinue further use of the
statement the Commission suspects may be false or misleading and, upon so
doing, the advertiser shall not be subject to an investigation of false
advertisement by the Commission for the statement.

The
Commission shall not commence any investigation of an advertiser of a dietary
supplement or a dietary ingredient to determine whether the advertiser has
disseminated a false advertisement unless it possesses before the commencement
of such investigation clear and convincing evidence that the advertisement is
false and misleading.(5)

Burden of proof
for false advertisement cases

In every proceeding before a court
or the Commission in which an advertiser of a dietary supplement or a dietary
ingredient is charged with false advertising, the burden of proof shall be on
the Commission to establish by clear and convincing evidence that the
advertisement is false, that the advertisement actually caused consumers to be
misled into believing to be true that which is false, and that but for the
false advertising content the consumer would not have made the purchase at the
price paid. If a claimed health benefit of a dietary supplement or dietary
ingredient is alleged to be false advertising, the Commission must additionally
establish based on expert scientific opinion and published peer-reviewed
scientific evidence that the claim is false. No order adverse to the advertiser
shall be entered except upon the Commission satisfying this burden of
proof.